Translate aswanidatt.com
    Translate from:

    Translate to:

The Police May be Listening

Section 184.4 of the Criminal Code permits a peace officer to intercept certain private communications, without prior judicial authorization, if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence.  In principle, Parliament may craft such a narrow emergency wiretap authority for exigent circumstances.  The more difficult question is whether the particular power enacted in s. 184.4 strikes a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm.  To the extent that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm, this section strikes an appropriate balance.  However,s. 184.4 violates s. 8 of the Charter as it does not provide a mechanism for oversight, and more particularly, notice to persons whose private communications have been intercepted.  This breach cannot be saved under s. 1 of the Charter.

The language of s. 184.4 is sufficiently flexible to provide for different urgent circumstances that may arise, and it is far from vague when properly construed.  While it is the only wiretapping power that does not require either the consent of one of the parties to the communication or judicial pre‑authorization, a number of conditions and constraints are embedded in the language of s. 184.4 that ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm.  Police officers may only use this authority if they believe “on reasonable grounds” that the “urgency of the situation” is such that an authorization could not, with “reasonable diligence”, “be obtained under any other provision of this Part”.  Each of these requirements provides a legal restriction on the use of s. 184.4.  The provision imports an objective standard — credibly based probability for each of the requirements.  The conditions incorporate implicit and strict temporal limitations and the onus rests with the Crown to show, on balance, that the conditions have been met.  As time goes by it may be more difficult to satisfy the requirement that an authorization could not have been obtained with reasonable diligence, the situation is urgent or it is immediately necessary to prevent serious harm.

The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4.  It is at the proportionality analysis of R. v. Oakes that the provision fails.  The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies.  It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.  Section 184.4 of the Code is constitutionally invalid legislation.  This declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.

 

See: R. v. Tse, 2012 SCC 16

Contact
Contact Us
905-755-0104

Toll Free: 1844DATTLAW (1-844-328-8529)

295 Matheson Blvd. East
Mississauga, Ontario
L4Z 1X8
map it
Nathan Forbes
Nathan Forbes
15:23 05 Jul 19
Aswani was introduced through a family friend and I was very pleased with his service. He was able to provide a better outcome then I had initially envisioned. Communication was great throughout the process. He is knowledgeable, professional and delivers. I would highly recommend him as legal counsel.read more
D Parmar
D Parmar
22:24 23 Jun 19
Aswani is a very professional and knowledgeable lawyer and has handled our case with utmost care and taking care of all minute details. Made us feel comfortable and kept us well informed. Highly recommend his service as a lawyer.read more
IRIS Consulting
IRIS Consulting
16:43 04 May 19
I strongly recommend Aswani to people who need legal consulting. He is extremely competent and familiar with the system. He has handled some complex matters efficiently that I’d give him 5 stars. Keep up the amazing work Aswani. BR/Anandread more
Ryan Wolf
Ryan Wolf
23:24 21 Apr 19
Aswani k. Datt was randomly selected to represent me in a legal matter. He was professional, efficient, kind, caring, accommodating and very patient. He promised a quick and speedy resolve on my matter. He delivered as promise. He is highly recommended, and i want to thank him for everything that he has done for me. He is a brilliant and wonderful lawyer!read more
Sharanbir Khudal
Sharanbir Khudal
23:01 18 Apr 19
An Absolutely intelligent officer of the law, and an even better human being. He makes you feel comfortable and confident in your situation and will find ways to get you to your hopeful results in manners which you will not expect. I recommend him to everyone and anyone who needs legal help, not once, but as many times as necessary. If you’ve run across him for your legal needs, don’t look further.read more
Zulfiqar Shah
Zulfiqar Shah
14:10 10 Apr 19
I am trying to find words to describe our experience with Mr. Aswani, I find myself pondering how to describe him. I find myself lost for words and a short precise description would be Brilliant and Professional Lawyer, Friendly person to deal with and whenever we met him there was always a warm friendly smile telling you to not to worry. Ones walks out with confidence that he has your back. These words are the minimum to describe him, at least from my experience. If for any reason anyone out there needs a Lawyer, I would extremely highly recommend Aswani K Dutt.read more
Ankur Gandhi
Ankur Gandhi
20:40 05 Mar 19
Best lawyer in town. Needed someone to represent me with my divorce case involving a child. He went above and beyond. Trust me you won't go wrong if he's your lawyer. And when he gives you an advise please take it because he's only thinking in best interest of his client.read more
Next Reviews